https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2233

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI** **CAUSE NO. E182 OF 2026** **DR. PERES KWAMBOKA AYIENG’A…………….……….1ST CLAIMANT** **DR. TABITHA WAMBUI KIMANI………………………..2ND CLAIMANT** **SUSAN MUTHONI GATEI…………………………………3RD CLAIMANT** **VERSUS** **KIAMBU COUNTY PUBLIC SERVICE BOARD……..1ST RESPONDENT** **COUNTY GOVERNMENT OF KIAMBU…….……….2ND RESPONDENT** **AND** **KENYA MEDICAL PRACTITIONERS, PHARMASISTS AND DENTISTS UNION………………………………...….INTERESTED PARTY** **RULING** **Background** 1. The Claimants filed the instant suit against the Respondents accusing them of having unfairly terminated their respective contracts of service on 14th January 2026. They contend that they were in service from 2008 until the aforesaid date when the Respondents issued them with letters dated 11th December 2025 terminating their services on account of gross misconduct. 2. The Claimants challenge the legality of the decision to terminate their services on various grounds. First, they contend that the disciplinary process which resulted in the impugned decision was conducted outside the timelines which are provided in the 2nd Respondent’s Human Resource Policies and Procedures Manual. Second, they contend that the Respondents did not provide them with the specifics of the grounds upon which their contracts were terminated. Third, they allege that the Respondents did not accord them an opportunity to be heard or to be represented during the alleged disciplinary trial. They contend that no trial was in fact held. 3. The Claimants contend that the Respondents’ actions breached the law. They aver that they were denied the right to fair administrative action. As such, they contend that the decision to terminate their services was unlawful and unfair. Hence the decision to institute the instant proceedings. 4. The Claimants pray for various reliefs including:- 5. A declaration that their summary dismissal from employment was unjustified, unlawful and violated their right to fair administrative action. 6. A declaration that the disciplinary process was a nullity as it was undertaken outside the timelines which are provided in the 2nd Respondent’s Human Resource Policies and Procedures Manual. 7. An order of injunction to restrain the Respondents from recruiting, appointing or in any other way filling the vacancies created by their (the Claimants) unlawful dismissal from employment pending determination of the case. 8. An order for their reinstatement to their respective positions without loss of status or accrued benefits. 9. Compensation for unfair termination of their respective contracts of service. 10. Payment of salary arrears and benefits withheld from the date of dismissal from employment until the date of judgment. 11. Payment of terminal dues including unpaid leave, gratuity and pension contributions. 12. General and aggravated damages for psychological distress, public embarrassment and injury to their professional reputation as a result of the allegations made against them. 13. An order that the 1st Respondent expunges adverse disciplinary records arising from the dispute from their personal files. 14. An order requiring the Respondents to tender an apology to them (the Claimants). 15. Interest on the amounts to be awarded. 16. Costs of the suit. 17. Contemporaneous with the Memorandum of Claim, the Claimants filed the application dated 23rd February 2206 seeking various interim reliefs including:- 18. A conservatory order to stay implementation of the 1st Respondent’s decision to summarily terminate their contracts of service pending resolution of the application and the case. 19. An order of mandatory injunction to reinstate them to their positions pending resolution of the application and the case. 20. An order of injunction to reinstate them back into employment pending the hearing and determination of their application for review before the 1st Respondent. 21. An order of injunction to bar the Respondents from advertising, recruiting or in any other way filling the vacancies created by their (the Claimants) dismissal from service pending hearing and determination of their review application before the 1st Respondent. 22. The Respondents entered appearance in the cause and filed a Notice of Preliminary Objection dated 9th June 2026. They contend thus:- 23. That the court lacks jurisdiction to entertain the suit on account of article 234(2)(i) of *the Constitution*, section 77 of *the County Governments Act*, section 87(2) of *the Public Service Commission Act* and *the Public Service Commission (County Appeals Procedures) Regulations*, 2022. 24. That the suit offends the doctrine of exhaustion of alternative remedies which is provided for under section 9(2) of *the Fair Administrative Action Act*. 25. That the suit is incurably bad in law on account of invoking the court’s jurisdiction prematurely. 26. That the Claimants did not seek exemption from utilizing the other available mechanisms for dispute resolution as required by section 9(4) of *the Fair Administrative Action Act* before they approached the court. 27. That the suit offends rule 53 of the court’s rules which prohibits reinstatement of an employee at interlocutory stage of a dispute. 28. With the concurrence of the parties, the court directed that the preliminary objection be determined first. Accordingly, the parties have filed their submissions on the objection. As such, this ruling is confined to the preliminary objection. **Analysis** 1. The legal position, as rightly pointed out by the Respondents, is that a person is not entitled to approach the court for a remedy before he exhausts the available alternative mechanisms for resolving his grievance. However, this edict does not bar such person from approaching the court for interim ancillary reliefs which cannot be granted by the alternative dispute resolution forum even as he pursues resolution of the substantive dispute before the said forum. It only bars him from seeking the court’s hand in resolving the substantive dispute between the disputants in disregard of the available alternative dispute resolution mechanisms. 2. For instance, if a county public servant wishes to challenge the legality of a decision to terminate his contract of service by a County Government, he ought to file an appeal to the Public Service Commission (see article 234(2) (i) of *the Constitution*, section 77 of *the County Government Act* and 87(2) of *the Public Service Commission Act*). However, if he wishes to seek interim injunctive reliefs pending resolution, by the Public Service Commission, of the substantive grievance relating to the lawfulness of the decision to terminate his services, he is entitled to move to court for such reliefs because the law does not expressly grant the said Commission powers to grant interim injunctive reliefs pending resolution of an appeal before it. 3. It is in this context that I understand the law on exhaustion of alternative remedies. Indeed, various court decisions underscore the fact that a litigant who believes that the alternative dispute resolution forum before which he is required to file his case is not empowered to grant certain interim reliefs may approach the court for such relief. 4. Speaking to the issue in the case of ***Zena Achieng Mohamed v County Public Service Board, Kilifi & 6 others [2021] KEELRC 456 (KLR)***, the learned Judge stated as follows:- *‘’I do not think the Court can lock out a party seeking interim relief, on the basis of [the] exhaustion principle provided under the County Governments Act and the Public Service Commission Act. I say so because, if the subject of appeal before the Public Service Commission dissipates, then the ultimate decision by the Commission could well be an exercise in futility….* *…..I have looked at the Public Service Commission (County Governments Public Services Appeals Procedures) Regulations, 2016 and…..did not see any provision for interim relief pending determination of appeals lodged with the Commission. The effect of this is that actions forming the subject matter of appeals before the Commission could become entrenched and irreversible. In such an event, the resultant injustice to appellants would be great and the Court cannot ignore this exposure.”* 1. In ***Biwott & another v County Government of Uasin Gishu [2022] KEELRC 13415 (KLR)***, the learned Judge expressed himself on the matter as follows:- *‘’As observed earlier, this court has the constitutional and statutory jurisdiction over employment and labour relation matters however such jurisdiction where a statute, letter of contract, collective bargaining agreement requires initial resort to internal dispute resolution process, the crystallization of the court’s jurisdiction will only occur after the exhaustion of such internal dispute resolution process unless it can be demonstrated that the issue over which the courts’ jurisdiction is being invoked is exceptional such as the need to preserve the subject matter in dispute through an interlocutory injunction or conservatory orders. The court in such a case would be seized of jurisdiction but reserves the discretion in each case to either entertain the matter to conclusion or preserve the subject matter in dispute through an interlocutory order but stay the claim pending the outcome of the internal appeal process…… From the foregoing the court finds and holds that the omission on the part of the applicants to exhaust the internal appeal process before invoking the jurisdiction of the court is not fatal to the claim.’’* 1. It is therefore a misnomer, in my view, to contend that since the law requires an employee of a County Government who is aggrieved by a decision of the County Government in respect of his contract of service to challenge the decision before the Public Service Commission, the employee cannot approach the court for interim reliefs which the Commission is not expressly empowered to grant as he pursues resolution of the substantive grievance before the Commission. Such employee is entitled to approach the court for interim reliefs as long as they (the reliefs) do result in the conclusive determination of the substantive dispute before the Commission or other alternative dispute resolution forum. 2. Indeed rule 56(5) of *the Employment and Labour Relations Court (Procedure) Rules*, 2024 recognizes this reality by providing as follows:- *‘’Where the Constitution, a written law, collective bargaining agreement, contract of service, policy, or other instrument provides for alternative dispute resolution mechanisms:-* 1. *a person being party to a dispute may file a suit and seek appropriate interlocutory relief pending exhaustion of such alternative dispute resolution mechanisms or pending determination of the suit;* 2. *want of exhaustion of such alternative dispute resolution mechanisms shall not operate as a bar to a suit for application for interim orders or alleging unconstitutionality or unlawfulness of the action, omission, decision or other matter in dispute pending such exhaustion; and* 3. *a suit filed prior to exhaustion of such alternative dispute resolution mechanisms may be stayed and not struck out on account of such exhaustion.’’* 4. I have considered the various decisions which the Respondents have relied on to contend that the court lacks jurisdiction to entertain the instant suit because it was filed without regard for the principle of exhaustion of alternative remedies. Those decisions reiterate the point that one cannot move to court over a substantive dispute which should be the subject of alternative dispute resolution before he has exhausted the alternative dispute resolution procedures. However, they do not suggest that such person cannot seek interim reliefs from the court whilst he pursues resolution of the substantive dispute before the alternative dispute resolution forum if the forum is not empowered to grant the interim reliefs. 5. Importantly, some of the decisions alluded to were rendered before the enactment of *the Employment and Labour Relations Court (Procedure) Rules*, 2024. As such, the rules could not have impacted the outcomes of the cases. 6. On the other hand, it is evident that for the decisions which were rendered after the aforesaid rules had been enacted, the attention of the trial courts was not drawn to rule 56(5) of the rules. As such, none of the decisions has considered the ramifications of the rule on objections such as the one raised by the Respondents. 7. In the instant case, the Claimants state that they have indeed filed an application before the 1st Respondent for review of the decision to terminate their contracts of service in accordance with regulation 8 of *the Public Service Commission (County Appeals Procedures) Regulations* as read together with clause K10 of the 2nd Respondent’s Human Resource Policies and Procedures Manual. However, they contend that the 1st Respondent is yet to consider the application. 8. Yet, they (the Claimants) aver that they require their impugned positions to be preserved as they pursue the review application and that the Respondents are not empowered to grant interim injunctive/conservatory orders (see grounds 7 and 8 in support of the application dated 23rd February 2026). Hence their decision to approach the court for the interim injunctive reliefs to preserve the positions. 9. Clause K10 of the 2nd Respondent’s Human Resource Policies and Procedures Manual entitles an employee who is dissatisfied with the 1st Respondent’s decision regarding his employment to file a request for review of the decision before the 1st Respondent. The employee may then appeal the decision to the Public Service Commission in terms of regulation 8 of *the Public Service Commission (County Appeals Procedures) Regulations*. 10. If the court record is anything to go by, this is what the Claimants have done. They filed a request for review of the impugned decision before the 1st Respondent on 17th February 2026 and the review application is said to be pending determination. 11. As a matter of fact, the Respondents acknowledge this fact in their replying affidavit by stating as follows:- *‘’That the 2nd and 3rd Claimants have since lodged applications for review before the 1st Respondent…That the said review processes are currently pending determination….That the Claimants have already invoked the internal review mechanism and retain a right of appeal to the Public Service Commission.’’* 1. In the court’s view, the Claimants’ request for interim injunctive reliefs pending resolution of the review process before the 1st Respondent is what rule 56(5) of *the Employment and Labour Relations Court (Procedure) Rules, 2024* contemplates. The court is entitled to consider such request since there is no express provision in law which grants the 1st Respondent or the Public Service Commission the power to either stay the impugned decision or issue interim injunction orders pending resolution of the substantive grievance (see ***Zena Achieng Mohamed v County Public Service Board, Kilifi & 6 others*** (supra)). 2. What the court is not entitled to determine at this stage, in view of the various provisions of law cited above, is the legality of the decision to terminate the Claimants’ contracts. This must first be considered by the 1st Respondent through the pending application for review and subsequently, by the Public Service Commission through an appeal (if at all). 3. The Respondents also contend that the court is not entitled to grant an interim order to reinstate the Claimants to their positions pending resolution of the dispute between them. They rely on rule 53 of *the Employment and Labour Relations Court (Procedure)* *Rules,* 2024 to advance this argument. 4. The rule provides as follows:- *‘’Notwithstanding anything contained in this Rule, the Court shall not grant an ex parte order that reinstates into employment an employee whose services have been terminated.’’* 1. What the rule prohibits, in the court’s view, is the reinstatement of an employee through an ex-parte order. It does not outlaw reinstatement at the interlocutory stage of the case where this is done after inter-partes hearing of an application for interim reliefs. As such, the Respondents’ contention that the court is entirely debarred from ordering reinstatement of an employee as an interim measure is incorrect. Nevertheless, the court remains alive to the prevailing position that reinstatement of an employee at this stage of litigation should only be ordered in exceptional circumstances. 2. That said, since the prayer for reinstatement is one of the interim reliefs sought in the motion dated 23rd February 2026 which is still pending determination, the court will not address the request in this ruling. It will reserve its decision on the matter to the ruling on the aforesaid application. **Determination** 1. Consequently, the court finds that the Claimants were entitled to approach it for some of the interim reliefs which the law does not empower either the 1st Respondent or the Public Service Commission to grant pending the hearing and determination by the aforesaid agencies of their (the Claimants) grievances relating to the legality of the decision to terminate their contracts of service. 2. However, the court is not entitled to adjudicate on the substantive dispute relating to the legitimacy of the Respondents’ decision to terminate the Claimants’ contracts of service in the first instance. That is a matter which the 1st Respondent and the Public Service Commission ought to handle in the first instance pursuant to the principle of exhaustion of alternative remedies. 3. As such, the court will only adjudicate on the pending application for interim reliefs. Thereafter, it will stay further proceedings in the cause in terms of rule 56(5) of *the Employment and Labour Relations Court (Procedure) Rules,* 2024 pending determination of the review application before the 1st Respondent and appeal, if any, to the Public Service Commission. 4. In the premises, the court declines to grant the Respondents’ preliminary objection seeking to strike out the suit for want of jurisdiction. 5. Each party to bear own costs of the preliminary objection. **Dated, signed and delivered on the 30th day of July, 2026** **B. O. M. MANANI** **JUDGE** In the presence of: …………….for the Claimant …………….for the Respondents ……………….for the Interested Party **ORDER** **In light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.** **B. O. M MANANI**